Canada (Minister of Citizenship and Immigration) v. Wall, 2005 FC 110

Date: 20050125

Docket: T-496-04

                                                                                                                        Citation: 2005 FC 110

BETWEEN:                                                         

                                MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                            Applicant

                                                                           and

                                                         CYNTHIA JANE WALL

                                                                                                                                        Respondent

                                                        REASONS FOR ORDER

HARRINGTON J.:

[1]                Cynthia Wall is a missionary, doing God's work and preaching the gospel in far away lands. The Citizenship Judge said she is greatly to be admired and approved her application for citizenship, even though she barely spent one month here over the past four years. The Minister has appealed. He says that she has not met the residency requirements as the law says she must have resided here at least three years within the four years immediately preceding her application.

[2]                This Court must once again come to grips with the meaning of the word "residency" within the context of the Citizenship Act, R.S.C. 1985, c. C-29. The law has been in a state of confusion for almost thirty years.

THE FACTS

[3]         The facts are straightforward. The inferences to be drawn from them are not.

[4]                Cynthia Wall is an American citizen. She came to Canada in 1983 to attend bible study school. She married her husband, David, in 1987, and became a permanent resident of Canada that year. She remained in Canada until July 1991. In August of that year she was hired by New Tribes Mission of Canada and until May 1992 she was in the state of Missouri. I can only assume that this sojourn was connected with her work.

[5]                She and her husband were and remain missionaries in the employ of New Tribes Mission of Canada and have been working as such in Papua New Guinea. Missionaries with the New Tribes Mission normally work four years overseas with a year back in Canada between terms of service. At the time of her citizenship application in 2002, Mrs. Wall had served in Papua New Guinea from October 1992 to June 1997 and again from July 1998 to May 2002.

[6]                Her husband, David, is Canadian. Their five children are Canadian. To the extent that the children have not been home schooled they have been, or will be, schooled in Canada. The tax authorities have declared her to be a factual resident of Canada on the basis that she has maintained significant residential ties with Canada. She pays Canadian income tax on her world wide income (her tax returns have been exhibited; believe you me you don't become a missionary for the money!). She has Canadian medical insurance, a Canadian bank account, and Canadian life assurance. Her employer is Canadian and when she is here, she comes here to live, not to visit. Leaving aside Papua New Guinea, the choice is between Canada and the United States. Although she naturally visits her family in the States, she lives here, not there.

THE LAW

[7]         The Citizenship Judge's decision has to be considered both as to form and as to substance. It was written on a Citizenship and Immigration Canada printed form entitled, "Notice to the Minister of the Decision of the Citizenship Judge Section 5". The form is replete with boxes which give a choice to state whether something has or has not been done, and there are various headings, often in the form of questions. After spaces to fill in the answers, there is a space to write the "decision".

[8]                At the heart of the form, is the following printed statement:

In determining whether the applicant has demonstrated that Canada is the country in which he has centralized his mode of existence, I have considered those questions posed by Justice Reed in rendering the decision Re Koo (1992) 19 Imm. L.R. (2d) 1, 59 F.T.R. 27 [1993] 1 F.C. 286, (T.D.).

I have addressed each of these questions as follows:...

[9]                Then follows the six questions Reed J. posed in that case with spaces provided to answer each question separately.

[10]            It must be kept in mind that Re Koo, [1993] 1 F.C. 286 only represents one line of jurisprudence. The "centralized mode of living" approach to residency goes back to Re Papadogiorgakis, [1978] 2 F.C. 208, a decision of Thurlow A.C.J., as he then was. Drawing on the treatment of "residence" in tax statutes he said that a person who has established a home in Canada "does not cease to be resident there when he leaves it for a temporary purpose whether on business or vacation or even to pursue a course of study".

[11]            Reed J. developed this theme in Re Koo, supra, and said that the test can be formulated two ways. Is Canada the place where the applicant "regularly, normally, or customarily lives" or "is Canada -the country in which he or she has centralized his or her mode of existence". She then posed six questions "that can be asked which assist in such a determination - ". These questions should not be read as statutory conditions. These two cases stand for the proposition you may be here in mind, even if not in body.

[12]            The third case is Re Pourghasemi (1993) 62 F.T.R. 122, [1993] F.C.J. No. 232, online : QL. Muldoon J. drew a bright line; if you're in, you're in; if you're not, you're out.

[13]            This divergence led Lutfy J., as he then was, to hold in Lam v. Canada (Minister of Citizenship and Immigration) (1999) 164 F.T.R. 177, [1999] F.C.J. No. 410, online : QL, that it was open to a Citizenship Judge to adopt any one of these three conflicting lines of jurisprudence and, if the facts of the case were properly applied to the principles of that approach, the Citizenship Judge's decision would not be wrong. This was intended to be a stop gap measure as it was thought that the Citizenship Act would be amended and Parliament might see fit to define residence. Unfortunately, although statutory rules have been set out with respect to permanent residency within the meaning of the new Immigration and Refugee Protection Act, S.C. 2001, c. 27, there is no such guidance in the Citizenship Act and appeals from this Court to the Federal Court of Appeal are still not allowed. Consequently, it is somewhat presumptuous of Citizenship and Immigration Canada to propose that the Citizenship Judge follow Re Koo, supra. Unless parts of the printed form are scratched out or the Citizenship Judge specifically says he or she is drawing upon another case for inspiration, there is a presumption that the Judge has followed Re Koo, supra. I say this because if the decision had been written on a blank piece of paper I might have thought the Judge was following Re Papadogiorgakis, supra.

THE DECISION

[14]       Be that as it may, the six questions set out in the form, and the answers, are as follows:

1.          Was the individual physically present in Canada for a long period prior to recent absences which occurred immediately before the application for citizenship?

The answer filled in is that she attended bible college from 1983 through to the spring of 1987 and was landed as a permanent resident July 28, 1987. This answer is not directly responsive to the question. Mrs. Wall filed her citizenship application in September 2002. The then most recent absences (plural) were from October 1992 to June 1997, from July 1998 to May 2002. If anything, the Judge was focussing on her initial establishment in Canada.

2.          Where are the applicant's immediate family and dependants (and extended family) resident?

The answer was that her husband is a missionary along with her in Papua New Guinea, two of the five children were born in Canada, three in New Guinea and, along with Mr. Wall, are all Canadian citizens.

3.          Does the pattern of physical presence in Canada indicate a returning home or merely visiting the country?

The answer given is that she was returning home. She is one year in Canada and four years away. In two years, the eldest child will return to Canada to go to school. This answer is in accordance with information supplied by her employer who confirmed that after terms of service employees are always expected to return to Canada.

4.          What is the extent of the physical absence? (number of days away from Canada vs. number of days present in Canada)

The answer was that, of the total number of days in four years (1460), she was physically present 38 days and absent 1422 days. It was also noted that the 38 days immediately preceded her application. I take it that if she had only applied near the end of the year during which she awaited reassignment she could have got her numbers up to about 365.

5.          Is the physical absence caused by a clearly temporary situation such as employment as a missionary abroad, following a course of study abroad as a student, accepting temporary employment abroad, accompanying a spouse who has accepted temporary employment abroad?

The answer given was that this was a permanent situation. The applicant is a missionary four years in the field, one year in Canada, and also takes a short trip to visit her family in the U.S.A.

6.          What is the quality of the connection with Canada? Is it more substantial than that which exists with any other country?

The answer was that she always came to Canada on vacations, one year break, and did schooling here. I question whether this is a vacation, as opposed to a debriefing or spiritual retreat. The evidence is that they have rented the Missionary House from the Prairie Tabernacle Congregation in Three Hills, Alberta, "while on home assignment from the mission field."   

[15]            Then follows the decision which reads as follows:

Client and her husband are missionaries - the[y] live in New Guinea 4 yrs. & return to Canada 1 year. They live in the jungle for religious work they have 5 children 2 born in Canada rest on mission New Guinea. She has home schooled her children until they get a little older then they go to boarding school till they are ready for ... the[n] they will come to Canada - Husband will come home with the eldest son for short time to get him set up but both client and her husband and family live in New Guinea - they will remain on New Guinea till they feel they are called to another mission. Client and husband and family are to be greatly admired. Recommend for citizenship.

THE MINISTER'S SUBMISSIONS

[16]       The relevant provision of the Act is paragraph 5(1)(c), which provides:

[17]            The Minister acknowledged that the Court is divided on the manner in which residence can be accumulated. He submitted that Re Papadogiorgakis, supra, stands for the proposition that physical presence in Canada is not necessary to meet the three-year residence requirement as long as a centralized mode of living has been established, which is to be contrasted with Re Pourghasemi, supra, which requires a full three years of physical presence in Canada. The Minister suggests that Re Koo, supra, stands for the proposition that the physical presence of the applicant in Canada be taken into account as well as whether the applicant "regularly, normally, or customarily lives" or has centralized her mode of existence here, which led to the six questions which could be considered in making that determination.

[18]            He also submitted that the Citizenship Judge chose to follow the test set out in Re Koo, supra. However, as noted earlier herein, the Minister tipped the scales in favour of Re Koo, supra, by providing the Citizenship Judge with a form which fails to mention Re Papadogiorgakis, supra, or Re Pourghasemi, supra, or Lam, supra, in which Lutfy J., as he then was, taking account of the deference owed to the special knowledge and experience of the Citizenship Judge, said the Court should not interfere as long as the Citizenship Judge properly applied the test of his or her choosing. In this vein, see also Canada (Minister of Citizenship and Immigration) v. Mindich (1999) 170 F.T.R. 148, [1999] F.C.J. No. 978, online : QL, per Pelletier J., as he then was, at para. 9. The Minister submits that the Citizenship Judge either misunderstood or misapplied the test set out in Re Koo, supra. She did not properly consider Reed J.'s checklist. Absences from Canada are not acceptable simply because Mrs. Wall lives with her husband and children who are Canadian citizens, she returns to Canada one year in five, her children will continue their education here, she did some of her schooling here and because missionary work is said to be admirable.

[19]            Reed J. had asked the question whether physical absence was "caused by a clearly, temporary situation such as employment as a missionary abroad - " . The Citizenship Judge said "this is a permanent situation". Indeed, Mrs. Wall is deemed to have said that as she signed the form. I do not think that we should be hung up unduly on "permanent" as opposed to "temporary". Mrs. Wall clearly considers her vocation to be permanent although her individual four-year assignments are temporary.

RESPONDENT'S CASE

[20]       It is to be regretted that Mrs. Wall was not present at the hearing and not represented by counsel. I suspect she cannot afford a lawyer. Consequently, I have had to deal with this appeal on an ex parte basis. The applicant still has the onus of convincing me that the appeal should be granted.

ANALYSIS

[21]       Although, there is not universal agreement, following the decisions of the Supreme Court in Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 and Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, I would characterize most Citizenship Judges' decisions as being mixed ones of fact and law. The standard of review is reasonableness simpliciter, that is to say whether it can stand up to reasonable probing. It does not matter whether or not I would have reached the same conclusion. Recent cases adopting the reasonableness simpliciter approach are: Canada (Minister of Citizenship and Immigration) v. Fu, [2004] F.C.J. No. 88, online : QL, Chen v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 2069, online : QL and Zeng v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. no. 2134, online : QL.

[22]            The reasonableness simpliciter test holds true in applying the law to the facts within one of the three schools of thought. However, as of a matter of law, it is not correct to skip back and forth between different approaches (Lam, supra).

[23]            I have come to the conclusion that the decision as it is cannot stand. The guidelines set forth in Re Koo, supra, were not followed. Had the judge scratched out the reference to Re Koo, supra, in the printed form and said she was following Re Papadogiorgakis, supra, I might have been inclined to the view that her application of facts and law was not unreasonable. However, we cannot simply ignore the printed form.

[24]            I am also disturbed that no check mark was entered either in the box that Mrs. Wall had satisfied the residency requirements of the Citizenship Act or that she had not. Coupled with the fact that the Citizenship Judge has said "Recommend for Citizenship" in the "Reasons" box and "Recommended for Citizenship" in the "Decision" box might well lead one to the conclusion that she had section 15 of the Citizenship Act in mind. That section provides that, where a Citizenship Judge is unable to approve an application, she may still make a recommendation that requirements be waived in special cases. This is consistent with the fact that under the governing section of the Citizenship Act, section 14, the Citizenship Judge approves or does not approve an application. Recommending does not figure into it. However, the use of language by the Citizenship Judge may have been somewhat loose and she specifically filled in the boxes stating that she was not referring the matter to the Minister for discretionary consideration. She could well have done so given that Mrs. Wall will never run up enough days before her retirement, and missionaries do not retire young.

[25]            I am also concerned with the comment that she and her family are to be admired. What about a merchant or a lawyer? We are all equal in the eyes of the Lord, by whatever name, and more to the point of this case, equal under the laws of this land. Admiration may be relevant to section 15, but not to section 14.

[26]            In summary, Re Koo, supra, was not followed. If the Citizenship Judge intended to follow Re Papadogiorgakis, supra, she should have said so and her references to recommendations and admiration are most confusing.

[27]            For these reasons, the appeal must be allowed. However, considering the uncertainty as to what the Citizenship Judge intended to do, in the exercise of my appellate function, I am not only quashing the decision below, but also referring the application back to the same Citizenship Judge for rehearing. In this regard, see Ma v. Canada (Minister of Citizenship and Immigration), (1999) 163 F.T.R. 156, [1999] F.C.J. No. 288, online : QL.

                           "Sean Harrington"              

                                                                                                                           J.F.C.                           

Ottawa, Ontario

January 25, 2005

                                                 FEDERAL COURT

                NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                                               T-496-04

STYLE OF CAUSE:                                                               MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                AND

CYNTHIA JANE WALL

PLACE OF HEARING:                                                         EDMONTON, ALBERTA

DATE OF HEARING:                                                           JANUARY 18, 2005

REASONS FOR ORDER:                                                   HARRINGTON J.

DATED:                                                                                   JANUARY 25, 2005

APPEARANCES:

Camille Audain                                                                          FOR APPLICANT

(No one appearing)                                                                   FOR RESPONDENT

SOLICITORS OF RECORD:

John H. Sims, Q.C.

Deputy Minister of Justice and

Deputy Attorney General of Canada     FOR APPLICANT